Charities for Definite Persons

Abstract

The title is borrowed from an appendix of Gray, The Rule Against Perpetuities.1 Professor Gray challenged the common statement that a charitable trust must be for an indefinite number of persons. That statement usually is made in cases where it is contended that the possible beneficiaries of an attempted charitable trust are too indefinite. The answer often given to that contention is that the beneficiaries of a charitable trust may be and indeed must be indefinite. Professor Gray gave numerous examples of trusts held to be charitable where the only possible beneficiaries at a given time are definite, and ascertainable. He contended that such beneficiaries have a right to relief, subject to the qualification that the Attorney General is a necessary party to a suit to carry out the trust. The purpose of this article is to pursue the subject further with particular reference to the American cases. This investigation raises the question of whether or not there is a clear dividing line between all charitable trusts and all private trusts. It is true that the typical charitable trust differs in several respects from the typical private trust. The principal features peculiar to the typical charitable trust may be stated as follows: (i) the beneficiaries are indefinite; (2) there is a valid perpetuity in the sense that the trust will continue indefinitely; (3) enforcement is by or through the Attorney General; (4) the trust purpose is subject to variation under the cy pres power; (5) certain statutes apply in some jurisdictions, e. g., mortmain statutes of various kinds 2 and tax exemption statutes. It is at least conceivable that a particular trust might be charitable for one or more of these purposes but not for others. This notion limits the authority of a particular case. The tax cases are the most striking example; 3 other examples will be discussed later. On the otlier